COVID-19 (“Coronavirus”) presents an evolving health issue with complex problems for employers to address as they work to maintain workplace safety, productivity, and legal compliance. The U.S. Centers For Disease Control (“CDC”) and the U.S. Department Of Labor’s Occupational Safety And Health Administration (“OSHA”) have published information and guidance for employers on this issue. Businesses should review these resources for guidance which can be found here:

Businesses in certain industries (such as health care) should consult additional agency information and guidance. Consult with your legal counsel regarding which additional agency guidance may be applicable to your industry. Below is a summary of issues that should be considered by all businesses in preparing for and addressing Coronavirus issues in the workplace:

Workplace Safety

The OSHA General Duty Clause requires employers provide “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees”. Some steps employers can implement to effectuate basic infection prevention include:

Discontinue non-essential business travel to locations with ongoing Coronavirus outbreaks (consult the CDC travel warning levels at www.cdc.gov/coronavirus/2019-ncov/travelers). Employers should tread more carefully in policing non-work related travel. For non-work related travel, employers should consider providing information regarding the risks of traveling to affected areas, request that employees notify human resources of travel to affected areas and require employees work remotely after travel to affected areas.

The above list is not exhaustive, and additional state and/or local guidance and apply. Consult your legal counsel for more information.

Reporting Requirements

OSHA requires covered employers to keep a record of certain work-related illnesses and injuries. While the standard cold and flu are exempted from recording requirements, OSHA has deemed Coronavirus a recordable illness when a worker is infected on the job. Certain employers may be subject to additional reporting requirements and should consult their legal counsel.

Whistleblower Protection

OSHA prohibits employers from retaliating against workers for raising concerns about safety and health conditions. There are also additional industry-specific laws which prohibit retaliation against employees who raise health and safety concerns in the workplace. Employers should communicate with their managers and supervisors regarding appropriately responding to workplace complaints about health and safety.

Leave Issues

The CDC recommends “[e]mployers should maintain flexible policies that permit employees to stay home to care for a sick family member.” Employees with sick family members may also be entitled to leave under the New York Paid Family Leave Act (“PFL”) or the federal Family Medical Leave Act (“FMLA”) and/or other local sick leave laws.

Generally, employees are not entitled to leave to stay at home to avoid getting sick. However, employees who have certain medical conditions (such as a compromised immune system) may request to stay at home as a reasonable accommodation under the Americans With Disabilities Act (“ADA”) and related state and local laws. Such requests should be considered and analyzed as any other disability related accommodation request.

Under limited circumstances, OSHA permits employees to refuse to come to work if they believe in good faith they will be exposed to imminent death or serious injury. This situation may be additionally governed by the National Labor Relations Act (“NLRA”) as a protected concerted activity, even in a non-union workforce. If this situation arises, employers should consult legal counsel.

With respect to employee pay during a leave or absence, pursuant to the Fair Labor Standards Act (“FLSA”) and related wage laws, exempt salaried employees who work any part of a work week must be paid for that week except in certain limited circumstances which may include a full day absence for personal reasons that is not otherwise covered by a paid time off policy. Non-exempt hourly employees must be paid for all hours worked, including work performed remotely. Non-exempt hourly employees are not entitled to pay for time in which they are not performing work unless they are covered by a paid leave law or policy.

ADA and Related Disability Discrimination Considerations

The Coronavirus pandemic presents a multitude of legal compliance considerations related to medical inquiries, confidentiality, discrimination, and accommodations to name a few. The United States Equal Employment Opportunity Commission (“EEOC”) promulgated guidance in 2009 in response to the H1N1 virus (“EEOC Pandemic Guidance”) that remains an instructive resource for the current pandemic and can be found here: https://www.eeoc.gov/facts/pandemic_flu.html

The ADA requires that employee medical information be kept confidential and only shared in limited circumstances. As such, employers should be mindful of privacy with respect to communication regarding infection in the workplace. According to the CDC, if an employee becomes infected with Coronavirus, the employer “should inform fellow employees of their possible exposure to [the virus]…but maintain confidentiality as required by the [ADA].” In addition to confidentiality requirements, employers should maintain employee health information (including Coronavirus related information) in a separate secure file rather than in the employee’s general personnel file.

Here are a few key points from the EEOC Pandemic Guidance regarding employer actions during a pandemic:

Employers may require that employees go home and not report to work if they display influenza-like symptoms

Employers may elicit additional information from employees who call in sick or report feeling ill at work to ascertain if they are experiencing symptoms associated with the Coronavirus

Employers may not ask employees who do not have Coronavirus-related symptoms if they have a medical condition that makes them susceptible to Coronavirus

If you have any questions about this Legal Briefing, please contact any attorney of our Firm at 585-730-4773.